Smith v. H. Pearce Real Estate Co.

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2 ,0 0 Conn. App. 82
Smith v. H. Pearce Real Estate Co.

DEFOREST W. SMITH ET AL. v. H. PEARCE
REAL ESTATE COMPANY, INC.
THE MILFORD BANK v. DEFOREST
INDUSTRIES, INC., ET AL.
(AC 47261)
Cradle, Suarez and Clark, Js.*

Syllabus

The plaintiffs, S, a licensed real estate broker, and D Co., a real estate
brokerage owned by S, appealed from the judgment of the trial court award-
ing them damages in their breach of contract action arising from an asset
purchase agreement between the plaintiffs and the defendant and from the
trial court’s judgment in an interpleader action, awarding a contested real
estate commission to the defendant. They argued, inter alia, that the court
improperly found that the defendant had proven its special defense and was
entitled to a setoff for the overpayment of a commission that it had previously
paid to S pursuant to the agreement. Held:

The trial court’s finding that the sale of a certain property was not pending
as of the date required by the parties’ agreement and, thus, that the defendant
was entitled to a setoff for its payment to S as a commission for the sale
of that property was not clearly erroneous, as the court’s finding was sup-
ported by the evidence.

This court declined to review the plaintiffs’ inadequately briefed claim that
the trial court improperly concluded that S was personally liable for the set-
off.

The trial court properly concluded that the parties’ agreement, which
included a schedule of excluded assets, limited assets excluded from the
sale to those leases renewed on or about the dates listed next to each lease
renewal on the schedule.
Argued January 16—officially released April 15, 2025

Procedural History

Action, in the first case, to recover damages for, inter
alia, breach of contract, and for other relief, and action,
in the second case, seeking an interlocutory judgment,
and for other relief, brought to the Superior Court in
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
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Smith v. H. Pearce Real Estate Co.

the judicial district of Ansonia-Milford, where the cases
were consolidated for trial; thereafter, the cases was
tried to the court, Grogins, J.; judgment, in the first
case, for the plaintiffs, and judgment, in the second
case, for the defendant H. Pearce Real Estate Company,
Inc., from which the plaintiffs in the first case and the
named defendant in the second case, appealed to this
court. Affirmed.
John-Henry M. Steele, for the appellants (plaintiffs in
the first case and named defendant in the second case).
Peter T. Fay, for the appellee (defendant H. Pearce
Real Estate Company, Inc., in each case).
Opinion

CRADLE, J. In this appeal from the judgments in two
consolidated actions arising from an asset purchase
agreement, the plaintiffs in the first action, DeForest
W. Smith and DeForest Industries, Inc. (DII),1 challenge
the judgments of the trial court, rendered after a court
trial. On appeal, the plaintiffs claim that the court
improperly (1) found that the defendant H. Pearce Real
Estate Company, Inc. (Pearce) was entitled to a setoff
for the overpayment of a commission that it previously
had paid to Smith, (2) concluded that Smith was person-
ally liable to Pearce for the setoff, and (3) rejected their
claim that certain lease renewals were excluded from
its sale of assets to Pearce.2 We affirm the judgments
of the trial court.
The following facts and procedural history, as set
forth by the trial court, are relevant to our resolution
1
In the second action, the trial court granted the motion for an interlocu-
tory judgment of interpleader filed by the plaintiff, The Milford Bank, with
respect to a commission claimed by both DII and H. Pearce Real Estate
Company, Inc., and awarded the commission to H. Pearce Real Estate Com-
pany, Inc. The Milford Bank is not participating in this appeal. We therefore
refer to Smith and DII as the plaintiffs.
2
We address the plaintiffs’ claims in a different order than they are set
forth in their principal appellate brief.
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Smith v. H. Pearce Real Estate Co.

of this appeal. Smith is a licensed real estate broker
and the owner of DII, which is a commercial real estate
brokerage located in Milford. Pearce is also in the busi-
ness of commercial real estate, with an office located
in North Haven. On or about June 19, 2012, the plaintiffs
and Pearce entered into a five year asset purchase
agreement (agreement), whereby Smith agreed to sell
certain business assets to Pearce. Those assets included,
but were not limited to, listings for commercial real
estate sales and leases. The agreement provided, how-
ever, that certain real estate sales listings and lease
renewals were excluded from the sale of assets. These
excluded assets were identified in schedule 1.1 (a) of
the agreement. The effective date of the agreement was
July 17, 2012, and the end date of the agreement was
July 17, 2017.
As part of the agreement, Smith and the other real
estate brokers who worked for DII were hired by Pearce
to work as independent real estate brokers in connec-
tion with transactions involving the purchase, sale, and
leasing of commercial real estate. Pearce agreed to pay
certain percentages3 of the gross commission income
produced by Smith and his agents and received by
Pearce for transactions that were completed between
July 17, 2012, and July 17, 2017, and transactions that
were pending as of July 17, 2017, and closing within
twelve months thereafter.4
On December 18, 2018, the plaintiffs commenced an
action (Smith action) seeking compensatory damages
3
The commissions to be paid to Smith and the DII brokers were set
forth in the Pearce Commercial Policies and Procedures Manual which was
admitted as a full exhibit at trial.
4
Schedule 1.1 of the agreement provides, inter alia: ‘‘(a) All client listing
agreements of the Business as of the Closing Date, as listed on Schedule
1.1 (a) attached hereto, but specifically excluding all client listing agreements
for which letters of intent or purchase agreements have been signed prior
to Closing, and client listing agreements for which commissions have been
earned but not yet paid as of the Closing date, as listed on Schedule 1.1 (a)
attached (the ‘Seller Agreements’).’’
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for unpaid commissions and bonuses from certain real
estate sales and lease renewals allegedly due pursuant
to the agreement. Although the plaintiffs’ operative
complaint dated October 24, 2019, consisted of six
counts, counts four through six were stricken by the
court and the plaintiffs withdrew count two, leaving
only counts one and three. In count one, Smith alleged
that Pearce failed to pay him bonus compensation as
required under the agreement for certain transactions
that he brokered for Pearce. In count three, the plaintiffs
alleged that Pearce received commissions from lease
renewals that were identified as excluded assets in the
agreement but failed to remit those commissions to the
plaintiffs. Pearce denied the plaintiffs’ allegations and
asserted a special defense as to count one, claiming
that it was entitled to a setoff in the amount of $80,000
for an erroneous overpayment to Smith arising from
the sale of commercial property located at 126 Boston
Post Road in Milford.
In 2021, The Milford Bank (bank) filed a related action
(interpleader action), regarding competing claims by
DII and Pearce to a commission from a lease renewal
for a property owned by the bank, located at 9 Depot
Street in Milford, which was one of the lease renewals
at issue in count three of the Smith action. The court
entered an interlocutory judgment of interpleader
wherein it explained that the bank filed that action
‘‘claiming that [DII and Pearce] be required to interplead
together concerning their claims to funds in the hands
of the [bank] . . . .’’ The court ordered DII and Pearce
to ‘‘interplead together by appropriate pleading, stating
their respective claims to the funds, and that the [bank]-
deliver to the clerk of this court to await the further
and final order of this court.’’ The cases were consoli-
dated for trial and all parties stipulated that the court’s
decision in the Smith action would resolve the issue in
the interpleader action.
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Smith v. H. Pearce Real Estate Co.

On December 12, 2022, the cases were tried to the
court. Both parties were represented by counsel. Smith
was the only witness who testified at trial. Both parties
submitted several documents, all of which were admit-
ted into evidence by agreement and without objection.
On October 10, 2023, the court filed a memorandum of
decision wherein it concluded that, as to count one,
Smith was entitled to bonus compensation in the amount
of $31,582.50 but that Pearce had met its burden of
proof on its special defense and was entitled to a setoff
in the amount of $80,000 for a commission that it had
erroneously paid Smith in connection with the sale of
126 Boston Post Road. The court therefore concluded
that Smith owed Pearce $48,417.50, plus costs. As to
count three, the court found that the plaintiffs were
entitled to commissions for certain, but not all, lease
renewals in the amount of $2173.58, plus costs. With
respect to the interpleader action, the court found in
favor of Pearce after determining that the lease renewal
with respect to 9 Depot Street in Milford was not part
of the excluded assets set forth in the agreement and
awarded it the full amount of the contested commission.
The plaintiffs thereafter filed a motion to reargue, which
the court denied. This appeal followed.
I
The plaintiffs first claim that the court improperly
concluded that Pearce was entitled to a setoff for the
overpayment of a commission that it had paid to Smith
for the sale of 126 Boston Post Road. Specifically, the
plaintiffs argue that the court erroneously found that
the sale of 126 Boston Post Road was not pending as
of July 17, 2017. We disagree.
In assessing this claim, the court explained: ‘‘In mak-
ing its decision regarding the setoff, the court has . . .
reviewed . . . Pearce’s commercial property summary
form for the sale of 126 Boston Post Road . . . as well
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Smith v. H. Pearce Real Estate Co.

as the commercial division disbursement form, pre-
pared by Smith. . . . The court has also reviewed the
agreement, and specifically the applicable section of
that agreement (§ 2.1), pertaining to this issue. Section
2.1 of the agreement provides in relevant part: ‘Consid-
eration. As consideration for the seller’s sale of the
assets to the buyer, the buyer agrees to pay . . . twenty
percent (20%) of the gross commission income pro-
duced by the agents, including without limitation com-
missions due . . . for transactions completed after the
effective date [of July 1, 2012] and prior to July 1, 2017,
and transactions pending as of July 17, 2017 and closing
within twelve (12) months thereafter . . . .
‘‘The court importantly notes that the date listed on
the summary form for the sale of 126 Boston Post Road
is July 26, 2017. The offer date listed on the disburse-
ment form prepared by Smith is July 25, 2017. The
closing date listed on the summary sheet for the sale
of this property is December 29, 2017. . . . The closing
date listed on the disbursement form for the sale of
this property is September 30, 2017. . . . The court
finds that the sale of this property was not completed
after the effective date of the agreement and prior to
July 1, 2017. The court also finds that this transaction
was not pending as of July 17, 2017. This was a condition
required by § 2.1 of the agreement for the plaintiff to
receive the $80,000 consideration payment.’’ The court
therefore found that Pearce ‘‘erroneously paid the plain-
tiff the $80,000 consideration payment for the sale of
[126 Boston Post Road] . . . .’’
‘‘A finding of fact is clearly erroneous when there is
no evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.
. . . Under the clearly erroneous standard of review,
a finding of fact must stand if, on the basis of the
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Smith v. H. Pearce Real Estate Co.

evidence before the court and the reasonable inferences
to be drawn from that evidence, a trier of fact reason-
ably could have found as it did.’’ (Internal quotation
marks omitted.) Circulent, Inc. v. Hatch & Bailey Co.,
217 Conn. App. 622, 630, 289 A.3d 609 (2023).
The plaintiffs argue that the court’s finding that the
sale of 126 Boston Post Road was not pending as of
July 17, 2017, was clearly erroneous because Pearce
failed to submit a signed letter of intent or a signed
purchase and sales agreement to establish the date of
the transaction. In so arguing, the plaintiffs cite to
Smith’s testimony, which is consistent with the agree-
ment, that ‘‘transaction pending’’ means a transaction
‘‘where there is either a letter of intent or a purchase
agreement in existence as of July 17, 2017.’’ Although a
signed letter of intent or contract could have established
the date at issue, it does not necessarily follow that the
introduction into evidence of those particular docu-
ments is the only way to establish that fact. Here, the
court properly considered Pearce’s records, which were
admitted into evidence without objection or limitation,
and from the dates listed in those records, reasonably
inferred that the sale of 126 Boston Post Road was
not pending as of July 17, 2017. It is well settled that
‘‘[e]vidence admitted without objection remains evi-
dence in the case subject to any infirmities due to any
inherent weaknesses. . . . A failure to make a suffi-
cient objection to evidence which is incompetent
waives any ground of complaint as to the admission of
the evidence. . . . If the evidence is received without
objection, it becomes part of the evidence in the case,
and is usable as proof to the extent of the rational
persuasive power it may have.’’ (Citation omitted; inter-
nal quotation marks omitted.) Dufresne v. Dufresne,
191 Conn. App. 532, 546–47, 215 A.3d 1259 (2019). The
court, therefore, in its discretion was entitled to rely
on this evidence to the extent it deemed it persuasive.
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To the extent the plaintiffs contend that the court erred
in considering the documentary evidence admitted
without limitation, they have cited no legal authority,
nor are we aware of any, that would restrict the court’s
ability to do so.
The plaintiffs also argue that there was ‘‘no evidence
in the record to support the trial court’s conclusion
that: ‘The offer date listed on the disbursement form
prepared by Smith [in trial exhibit A] is July 25, 2017.’ ’’
The plaintiffs are correct. The disbursement form lists
the ‘‘posting date’’ of the transaction as July 25, 2017.
The commercial property summary form, however, lists
the offer date for the property as July 26, 2017. The
court’s error in identifying the document that contained
the offer date does not convince us that the court erred
in finding that the transaction was not pending as of
July 25, 2017.
In sum, we are persuaded that the court properly
considered the documentary evidence introduced at
trial and the dates contained in those documents relat-
ing to the sale of 126 Boston Post Road, all of which
occurred after July 17, 2017. We therefore conclude
that the court’s finding was supported by the evidence,
and, on the basis of that evidence, we are not left with
the definite and firm conviction that a mistake has been
committed. Accordingly, the court’s finding that the
sale of 126 Boston Road was not pending as of July 17,
2017, was not clearly erroneous.
II
The plaintiffs also claim that the court improperly
concluded that Smith was personally liable for the set-
off. Specifically, the plaintiffs argue that ‘‘it was error
for the trial court to find in favor of [Pearce] against
Smith personally on [Pearce’s] $80,000 claim for setoff’’
because Pearce ‘‘offered no proof at trial that DII’s
corporate veil should be pierced.’’
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Smith v. H. Pearce Real Estate Co.

This court ‘‘repeatedly ha[s] stated that [w]e are not
required to review issues that have been improperly
presented to this court through an inadequate brief.
. . . Analysis, rather than mere abstract assertion, is
required in order to avoid abandoning an issue by failure
to brief the issue properly. . . . [F]or this court judi-
ciously and efficiently to consider claims of error raised
on appeal . . . the parties must clearly and fully set
forth their arguments in their briefs. . . . The parties
may not merely cite a legal principle without analyzing
the relationship between the facts of the case and the
law cited. . . . Where a claim is asserted in the state-
ment of issues but thereafter receives only cursory
attention in the brief without substantive discussion or
citation of authorities, it is deemed to be abandoned.’’
(Citations omitted; internal quotation marks omitted.)
1st Alliance Lending, LLC v. Dept. of Banking, 229
Conn. App. 664, 704–705, 328 A.3d 681 (2024), cert.
denied, 351 Conn. 906, 330 A.3d 132 (2025).
This claim comprises only two brief paragraphs of
the plaintiffs’ brief to this court, in which they baldly
assert that Pearce was required to pierce the corporate
veil to prevail on its claim of setoff. Although the plain-
tiffs’ argument contains two case citations, they fail to
recite the principles in those cases on which they rely
and apply those principles to the facts of this case.
Because the plaintiffs have afforded this claim only
cursory attention without substantive discussion, we
conclude that it is inadequately briefed and, accord-
ingly, decline to address it.
III
Finally, the plaintiffs claim that the court erred by
rejecting their claim that certain lease renewals were
specifically excluded from its sale of assets to Pearce.
Specifically, the plaintiffs claim that the court improp-
erly concluded that the lease renewals listed on the
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Smith v. H. Pearce Real Estate Co.

excluded asset schedule were limited by the expected
lease renewal dates listed on that schedule. We dis-
agree.
In addressing the plaintiffs’ claim pertaining to the
lease renewals at issue, the court explained: ‘‘In count
three of the plaintiffs’ complaint, [the plaintiffs] claim
that DII is owed commissions from certain lease renew-
als that were specifically excluded from its sale of assets
to [Pearce] in the agreement. The plaintiffs assert that
these lease renewals were identified as excluded assets
in Schedule 1.1 (a) . . . . The list of ‘excluded assets’
specifically identifies the excluded lease renewals by
property address, tenant name, and the approximate
lease renewal date. [Pearce] contends that the lease
renewals at issue were not excluded assets and, in fact,
were included in the sale of the plaintiff’s business
[assets] to [Pearce]. . . . Pearce . . . asserts that the
dates for the lease renewals listed on the excluded asset
schedule do not match the dates of the lease renewals
which are the basis for the plaintiffs’ claims and, there-
fore, cannot be the same lease renewals which are listed
on the excluded asset schedule.5
‘‘The plaintiffs contend that the lease renewals listed
on the excluded asset schedule are not limited by the
expected lease renewal dates listed on said schedule.
5
For instance, the agreement lists as excluded the lease renewal for ‘‘408
Woodmont Road, Milford . . . 12/2015.’’ The plaintiffs claimed commis-
sions for the March 4, 2016, June 19, 2017 and March 13, 2019 renewals of
the lease of that property. The agreement lists as excluded the lease renewal
for ‘‘9 Depot Street, Milford . . . 5/2013.’’ The plaintiffs claimed commis-
sions for the November 2, 2016 and November 10, 2019 renewals of the
lease of that property. The agreement lists as excluded the lease renewal
for ‘‘78 Rebeschi Drive, North Haven . . . 10/1/2015.’’ The plaintiff claimed
the commission for the May 20, 2019 renewal of the lease of that property.
The agreement lists as excluded the lease renewal for ‘‘70-76 Robinson Blvd.,
Orange . . . .’’ This property is listed twice, for two separate tenants, with
the dates January 31, 2014, and March 2, 2014. The plaintiffs claimed commis-
sions for the December 31, 2013 and January 6, 2017 renewals of those
leases, respectively.
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Smith v. H. Pearce Real Estate Co.

The plaintiffs further assert that the lease renewals at
issue are identified by the property address and the
tenant, regardless of the date [on] which the lease
renewed. To support [their] position, the plaintiffs
assert that the lease renewals at issue fall under the
definition of ‘accounts receivable,’ which is defined in
the agreement as follows: ‘Accounts receivable shall
include, without limitation, commissions due to [Smith
and/or DII] on lease renewals for leases executed prior
to the Closing Date.’ ’’ (Footnote added.)
In considering this claim, the court noted the princi-
ple that, ‘‘in construing contracts, [the courts] give
effect to all the language included therein, as the law
of contract interpretation . . . militates against inter-
preting a contract in a way that renders a provision
superfluous.’’ (Internal quotation marks omitted.) John-
son v. Vita Built, LLC, 217 Conn. App. 71, 85, 287 A.3d
197 (2022). The court then reasoned: ‘‘In interpreting
this agreement and the excluded asset schedule, the
court finds that the date listed next to each lease
renewal on the excluded asset schedule is the expected
renewal date for that lease. This date identifies those
lease renewals, which the plaintiffs intended to be
excluded from the agreement.’’ The court further rea-
soned that ‘‘the principle that ‘the expression of one
thing is the exclusion of another’ suggests that the par-
ties did not intend for any lease renewals, other than
those occurring on the dates listed on the schedule, to
be excluded assets. Biro v. Matz, 132 Conn. App. 272,
282, 33 A.3d 742 (2011).’’
In reviewing the plaintiffs’ challenge to the court’s
interpretation of the agreement, we are guided by the
following principles. ‘‘It is well established that [a] con-
tract must be construed to effectuate the intent of the
parties, which is determined from the language used
interpreted in the light of the situation of the parties
and the circumstances connected with the transaction.
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Smith v. H. Pearce Real Estate Co.

. . . [T]he intent of the parties is to be ascertained by
a fair and reasonable construction of the written words
and . . . the language used must be accorded its com-
mon, natural, and ordinary meaning and usage where
it can be sensibly applied to the subject matter of the
contract. . . . Where the language of the contract is
clear and unambiguous, the contract is to be given effect
according to its terms.’’ (Internal quotation marks omit-
ted.) Wethington v. Wethington, 223 Conn. App. 715,
730–31, 309 A.3d 356 (2024). ‘‘The interpretation of
definitive contract language is a question of law over
which our review is plenary.’’ (Internal quotation marks
omitted.) AGW Sono Partners, LLC v. Downtown Soho,
LLC, 343 Conn. 309, 322, 273 A.3d 186 (2022).
The plaintiffs claim that the court, relying on the lease
renewal dates set forth in the excluded asset schedule,
improperly determined that only leases that had renewed
on or about those dates were excluded from the sale
of assets. As they did in the trial court, the plaintiffs
contend that all renewals of leases that were executed
prior to the date of the agreement were excluded from
the sale of assets. The plaintiffs concede that the agree-
ment does not contain the word ‘‘all’’ but argue that the
use of the word ‘‘renewals’’ means all lease renewals.
If that were true, there would be no reason to have
listed the lease renewals at issue separately on the
schedule of excluded assets. Indeed, as the court found,
to read it as the plaintiffs suggest would render the
listed dates superfluous, which, as noted herein, is disfa-
vored by our law. We therefore agree with the court’s
conclusion that the dates listed next to each lease
renewal limited the excluded assets to the leases
renewed on or about those dates.
The judgments are affirmed.
In this opinion the other judges concurred.